The Central Fallacy of Canadian Constitutional Law

Transcription

The Central Fallacy of Canadian Constitutional Law
J. Noel Lyon*
Legal theory is important because it shapes the questions we
frame about the law and the way we respond to those questions in
concrete cases. Constitutional theory is especially important because
it determines the way we perceive the functions and relationships of
the various institutions of government and hence the quality of our
system of representative government under law. The purpose of this
article is to consider how well Canadian constitutional theory reflects
the law of the Canadian Constitution, and the conclusion offered will
be that we claim the theoretical simplicity of the English doctrine of
parliamentary supremacy by largely ignoring the written character
of our basic constitutional law. The thesis is not that parliamentary
supremacy is not a central principle of Canadian constitutional law,
but rather that in its application to the Canadian system the
doctrine must be qualified in the face of a limited legal separation
of powers imposed by the British North America Act, 1867.1
The doctrine of parliamentary supremacy leads to the twin propositions that Parliament cannot bind its successors and that an
Act of Parliament, duly passed, cannot be impeached in a court of
law. We shall be concerned only with the second of these concepts,
and with the extent to which the separation of powers between all
three branches of government - the Legislature, Executive and
Judiciary - is a matter of law for enforcement by the courts.
English lawyers can assert with confidence that from the point
of view of legal theory, the supremacy of Parliament is absolute
and unqualified. In law, there is nothing that Parliament cannot do.
In Canada the principle of legislative supremacy is also part of our
constitutional law, the preamble to the British North America Act
informing us that the Act was intended to unite the Provinces federally into one dominion "with a constitution similar in principle
to that of the United Kingdom". Now it may seem a simple matter
to adapt the principle of legislative supremacy to .a federal system,
but in fact this is not so, and the common belief to the contrary has
led to a simplistic conception of the basic theoretical framework of
* Of the Faculty of Law, Queen's University.
130-31 Vict., c.3.
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CENTRAL FALLACY OF CANADIAN CONSTITUTIONAL LAW
41
Canadian constitutional law. That conception causes confusion in
constitutional analysis and leads to a failure to ask some important
questions.
An example may help before pursuing the nature and cause of
the central fallacy alleged in the title. When the breathalyzer law
introduced in Canada in 19692 was referred to the Supreme Court
for an opinion as to its validity, the Court had to determine whether
the Governor in Council had acted with authority in proclaiming
some, but not all, of the provisions of the amendment.3 It will be
remembered that the breathalyzer amendment was part of an
omnibus bill containing a number of unrelated amendments to the
Criminal Code4 and to other federal statutes, and that this collection
of amending packages was followed by section 120, which delegated
proclaiming power to the Executive in the following terms:
This Act or any of the provisions of this Act shall come into force on a
day or days to be fixed by proclamation.
The Governor in Council proclaimed those parts of the amendment authorizing mandatory breath tests, the results of which could
be admitted in evidence in prosecutions for driving offences, but
left unproclaimed those parts which created an obligation on the
police to provide the person being tested with a sample of his or her
own breath in a suitable container. The reason given by the federal
government for this truncation of the amendment, was that a suitable
container could not be designed and produced in time to coincide
with the measures introduced to meet the urgent demand of provincial attorneys-general for more effective laws to deal with drinking
drivers.
Although the Supreme Court divided five to four, all nine Judges
considered that the outcome turned on whether Parliament intended
to authorize staggered proclamation of the various packages in the
Act or whether it intended to authorize the Executive to proclaim
parts of packages, leaving the other parts unproclaimed altogether.
This in turn led the Court to pursue, as the central inquiry in the
case, the true meaning of the word "provision". Did it mean only
whole packages or did it mean either packages or their constituent
parts?
2 Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c.38, s.16.
3 Reference Re Proclamationof Section 16 of the Criminal Law Amendment
Act, 1968-69 (1970) 10 D.L.R. (3d) 699 (hereinafter referred to as the Breathalyzer Reference).
4 S.C. 1953-54, c.51 (now R.S.C. 1970, c.C-34).
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There was a preliminary question which the Court should have
asked but did not; the failure of all the Judges to consider it is
indicative of the extent to which our constitutional law is dominated
by the simplistic conception that the English version of legislative
supremacy can be applied to the system of government created by
the British North America Act. The question that should have been
asked is this: Does the law of the Canadian Constitution impose any
limit on Parliament's power to delegate to the federal Executive?
If it does, then any intention of Parliament to go beyond that limit
cannot be given effect, however clearly it may emerge from the words
of the statute.
The dissenting Judges obviously worried about the separation of
powers, but they gave an explanation appropriate to English not
Canadian law, and an understanding of why this is so leads to a
search for our own constitutional identity as Canadian lawyers.
What the dissenters said was that Parliament cannot have intended
to delegate to the Executive power to alter the substance of the law
in the process of proclaiming it in force. That is what English judges
must say in such cases, their power being merely one of interpretation
not constitutional adjudication. Their interpretations of the law can
always be overcome by a legislative amendment making clear beyond
doubt that Parliament does intend what' the court thought was
impossible. The court provides a check, but in the end Parliament
can always prevail, legally speaking, because the Parliament of the
United Kingdom is truly a continuously functioning constitutional
convention,5 with power to alter the law of the English Constitution
in any way it chooses, at any time, by a simple Act of Parliament.
When Canadian judges adopt the attitude of English judges in
approaching questions of this kind, they simply decline their responsibility to interpret the law of the Canadian Constitution as
found in the British North America Act. If an excursion into Canadian constitutional law should lead them to conclude that no legal
limit exists on Parliament's power to delegate to the Executive, then
they still have the less powerful but nevertheless effective English
5A phrase borrowed from Mr Justice Black in Katz v. U.S. 389 U.S. 347
(1967), who dissented in the case because he did not share his colleagues'
opinion that electronic eavesdropping could constitute a "search" or "seizure"
within the meaning of the Fourth Amendment to the U.S. Constitution.
He stated:
"I will not distort the words of the Amendment in order to "keep the
Constitution up to date" or "to bring it into harmony with the times".
It was never meant that this Court have such power, which in effect
would make us a continuously functioning constitutional convention."
(at 373).
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approach based on interpretation. It is the persistent refusal to
make the excursion into Canadian constitutional law at all that is
here being criticized, and that refusal flows from the unexamined
assumption that Canadian legislatures enjoy a supremacy of the same
quality as that of the Parliament of the United Kingdom, subject
only to a federal division into two domains. The assumption is
deeply embedded in our legal thinking, so that a return to the origins
of our conception of the Canadian federal system is necessary if we
are to test the hypothesis being put forward here.
Our quest begins in 1883 with the judgment of the Judicial
Committee in Hodge v. The Queen," where Sir Barnes Peacock responded in the following terms to the argument that provincial
legislatures are "local" legislatures with no power to create a new
legislative body like the Board of Licence Commissioners for Toronto,
nor to delegate powers to such a Board:
It appears to their Lordships, however, that the objection thus raised
by the appellants is founded on an entire misconception of the true
character and position of the provincial legislatures. They are in no sense
delegates of or acting under any mandate from the Imperial Parliament.
When the British North America Act enacted that there should be a
legislature for Ontario, and that its legislative assembly should have
exclusive authority to make laws for the Province and for provincial
purposes in relation to the matters enumerated in sect. 92, it conferred
powers not in any sense to be exercised by delegation from or as agents
of the Imperial Parliament, but authority as plenary and as ample within
the limits prescribed by sect. 92 as the Imperial Parliament in the
plenitude of its power possessed and could bestow. Within these limits of
subjects and area the local legislature is supreme, and has the same
authority as the Imperial Parliament, or the Parliament of the Dominion,
would have had under like circumstances to confide to a municipal
institution or body of its own creation authority to make by-laws or
resolutions as to subjects specified in the enactment, and with the
object of carrying the enactment into operation and effect
The words in italics were omitted when the passage was quoted by
the Judicial Committee in the subsequent case of Liquidators of the
Maritime Bank of Canada v. Receiver General of New Brunswick.
The result of the omission was to create the impression that the
Hodge case had equated provincial legislatures to the Imperial
Parliament, for the truncated passage reads as follows:
Within these limits of subject and area, the local legislature is supreme,
and has the same authority as the Imperial Parliament, or the Parliament
of the Dominion.8
o (1884) 9 App.Cas.117.
7Ibid., 132 (emphasis added).
8 [1892) A.C. 437, 442.
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To the extent that words relate to conceptions, this truncated
passage reflects, I submit, the dominant conception of the Canadian
Constitution shared by Canadian lawyers. If the English Constitution can be represented by a closed circle of legislative supremacy
within which all legal questions must be located and answered, the
Canadian equivalent based on this dominant conception consists of
two closed circles, one for the Parliament of Canada, the other for
provincial legislatures, coloured section 91 and section 92 respectively. This mental set is expressed most commonly through the
following kind of assertion: Subject to the federal division of
powers, Canadian constitutional law is the same in principle as
English constitutional law ( ... "a constitution simliar in principle"
... ) and is founded on the supremacy of the legislatures.
This assertion and the conception it reflects do not stand up
under close examination. Legislative supremacy is certainly a central
principle of Canadian constitutional law, but it is not the central
principle as is the case in the United Kingdom. The British North
America Act did not spend its force in the act of creation and then
disappear from the legal landscape. It is still with us, and its legal
force and importance were reaffirmed by the Statute of Westminster, 1931, which enacted that "the British North America
Acts, 1867 to 1930, or any order, rule or regulation made thereunder"
should continue to lie beyond the reach of any Canadian legislative
body.'
Little attention has been paid, however, to the fact that the
entire British North America Act is part of the law of the Canadian
Constitution - not just sections 91 and 92. Legal interpretation of
the federal division of legislative powers has so captured the attention of lawyers that one can infer a prevailing view that Canadian
constitutional law consists only of sections 91 and 92 and cases
interpreting them. Beyond that, the common assumption seems to
be that Canadian constitutional law coincides with English constitutional law.
This assumption has now been shattered by an authoritative
decision, not of a Canadian court but of the Judicial Committee of
922-23 Geo.V, cA. The provision in question is section 7(1):
"Nothing in this Act shall be deemed to apply to the repeal, amendment
or alteration of the British North America Acts, 1867 to 1930, or any
order, rule or regulation made thereunder."
This provision was necessary, of course, because the Act terminated the
doctrine of repugnancy enacted by the Colonial Laws Validity Act, 1865, 28.29
Vict., c.63 which had formerly served to keep the British North America Acts
beyond the reach of Canadian legislative bodies.
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the Privy Council. 0 Certain enactments of the Legislature of Ceylon
(a unitary system) were held ultra vires because they were attempts
to usurp judicial power which the Constitution of Ceylon (an order
in council of the British Government) had vested exclusively in the
judiciary."- In finding that the Constitution of Ceylon enacts a separation of powers as part of the law of the Constitution, Lord Pearce
responded in this way to the attempt to claim for the Legislature
of Ceylon a supremacy comparable to that of the Parliament of the
United Kingdom:
During the argument analogies were naturally sought to be drawn from
the British Constitution. But any analogy must be very indirect, and
provides no . helpful guidance. The British Constitution is unwritten
whereas in the case of Ceylon their Lordships have to interpret a written
document from which alone the legislature derives its legislative power. 2
This judgment has great significance for Canadian constitutional
law, the more so because the provisions in the Ceylon Constitution
held by the Judicial Committee to manifest an intention of vesting
judicial power exclusively in the judiciary are substantially the same
as sections 96, 99 and 100 of the British North America Act. In
considering why the Liyanage case has attracted so little interest in
Canada (it was not even referred to in the Breathalyzer Reference),
one can only conclude that in a conceptual framework based on a
view of the Canadian Constitution as involving two replicas of the
British system -
one federal, one provincial -
Liyanage cannot
exist. There is no place for it in the scheme of things as seen by
Canadian judges and lawyers, so it is simply ignored.
What, then, is wrong with the view that subject to the federal
division of powers the Parliament of Canada and the provincial
legislatures are replicas of the Parliament of the United Kingdom?
The main answer is that it assumes that the federal division of
powers is an exercise in arithmetic that does not bring into play
those interactions between the different branches of government
which in the United Kingdom are all contained within the closed
circle of legislative supremacy. Moreover, it ignores all but Part VI
("Distribution of Legislative Powers") of the written law of the
Constitution found in the British North America Act, which defines,
and thereby limits, the powers and the functions of the various institutions of government.
This leads to an inquiry into the total effect of a federal system
on constitutional theory, remembering that in the Canadian Constitu'0 Liyanage v. The Queen [1967] 1 A.C. 259.
"Ceylon
(Constitution) Order in Council, 1946.
2
1 Supra, note 10, 288.
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tion the division of legislative powers is brought about by laws
whose final interpretation lies with courts for which the British
North America Act itself makes some provision.
First, consider the mental set of an English judge as he approaches an Act of Parliament. His function is to interpret; under
no circumstances is he to contemplate impeaching an Act of Parliament.' 3 His attitude is one of total deference to the legislative
branch, and his view of his role is pervaded by this theoretical
framework. Introduce one exception to this view and the theoretical
purity is gone, and with it the simplicity of the single, guiding
principle of legislative supremacy.
Our trouble is that we believe we can have both the purity of
English constitutional theory and a federal division of legislative
powers that is justiciable under a written Constitution which
assigns particular functions to particular institutions. The result is
decisions like that in the Breathalyzer Reference, where none of the
Judges even posed the constitutional question that is fundamental
to the case.
Let us pursue our comparison of Canadian and English constitutional theory a little further. In England the executive and judicial
branches are subject to the will of Parliament and could be altered
in any way or even abolished by Parliament. In Canada the federal
division of powers itself, since it, is justiciable, makes the judicial
branch at once both supervisory of, and beyond the reach of, the
legislative branch. When courts of law have a duty to tell legislatures
there are things they cannot do, a certain tension is created. It is not
helpful to ask whether we have legislative supremacy or judicial
supremacy when faced with this reality. It is more useful to recognize
that supremacy resides in the Constitution, if anywhere, and that
the Constitution prescribes the powers and functions of the various
institutions. The adjudication of the federal limits of legislative
powers is but one matter on which the judicial branch has the last
word. The whole of the British North America Act is law on which
the courts have long had the final word in the parliamentary system
that provided the basic model in 1867 ("... a constitution similar
in principle to that of the United Kingdom").
For example, sections 96, 99 and 100 of the Act require that
superior court judges be appointed by the Governor General, that
13 The immunity of Acts of Parliament from judicial review in the U.K. is
a concept so trite as not to require specific authority. As Lord President
Cooper put it in MacCormick v. The Lord Advocate [1953] S.C. 396, the issue
of constitutional vires is not a justiciable one under British constitutional law.
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they have tenure (that is, hold office during good behaviour), and
have their salaries, allowances and pensions fixed and provided by
Parliament. If the decision in Liyanage 4 is sound in principle, it
points to the conclusion that the British North America Act vests
judicial power exclusively in the judiciary as a matter of law, so
that constitutional amendment, not just an Act of Parliament or
of a provincial legislature, would be required before such power
could be exercised by the legislative or executive branches of
government. 5
In Liyanage, Lord Pearce, after referring to the Ceylonese equivalents of sections 96, 99 and 100 of the British North America Act,
made it clear that the Constitution of Ceylon, as interpreted by the
Judicial Committee, introduced a legal separation of powers into
the unitary parliamentary model adapted from the United Kingdom:
These provisions manifest an intention to secure in the judiciary a freedom
from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested
only in the judicature. They would be inappropriate in a Constitution
by which it was intended that judicial power should be shared by the
executive or the legislature. The Constitution's silence as to the vesting
of judicial power is consistent with its remaining where it had lain for
more than a century, in the hands of the judicature. It is not consistent
with any intention that henceforth it should pass to or be shared by,
the executive or the legislature. 16
If we accept that judicial responsibility to apply sections 91
and 92 and sections 96, 99 and 100 of the British North America Act
is, as Lord Pearce implies, the necessary corollary of a written
constitution, and not just an exception to a general rule of total
judicial deference to the legislative branch, then we can begin to
regard all of the British North America Act as an important, written
part of the law of the Constitution which is, by definition, judicially
enforceable.
This brings us back to the Breathalyzer Reference.", In response
to the theoretical framework applied in the Liyanage case, we are
14Supra, note 10.
15 In my note entitled Constitutional Validity of Sections 3 and 4 of the
Public Order Regulations, 1970 (1972) 18 McGillLJ. 136, I suggest that these
sections in effect constituted an Executive judgment that the F.L.Q. and
its members, friends and supporters were guilty of seditious conspiracy, and
were therefore void as an Executive usurpation of judicial power. The same
reasoning led to the conclusion that the successor provisions of the Public
Order (Temporary Measures) Act, 1970, S.C. 1970-71-72, c.2 were ultra vires
Parliament.
'6 Supra, note 10, 287-288.
17 Supra, note 3.
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forced to take the step of asking the question which was not posed
in the Supreme Court of Canada: Does the law of the Constitution
impose any limit on Parliament's power to delegate to the Federal
Executive? Having posed the question, we must now read past the
preamble to the British North America Act, because if we stop there
we climb into a mental set in which the question cannot exist. Confused or obscure legal decisions may not be simply the product of
technically inadequate reasoning. They may flow from fundamental
defects in the conceptual framework within which that reasoning is
done.
Although we must go beyond the preamble to the British North
America Act, we quite properly pause there to infer the principle of
legislative supremacy, not as the organizing principle of our constitutional law but as one of its most basic principles. From the Hodge
case, we learn that this principle applies both to the Parliament of
Canada and to the provincial legislatures, and that the power to
delegate inheres in the plenary legislative powers conferred through
the British North America Act. We then proceed to Part IV of the
Act to note that section 17 establishes "One Parliament for Canada",
consisting of the Queen, Senate, and House of Commons. In section
20 we note that the British practice of holding annual sessions of
Parliament is made a requirement of law in Canada. Nothing more
that helps us with our question appears until we arrive at section
91, which enacts that:
It shall be lawful for the Queen, by and with the advice and consent of
the Senate and House of Commons, to make laws for the peace, order and
good government of Canada....
If there is a legal limit on the power of Parliament to delegate,
this is where it is prescribed. Section 91 entrusts the power to "make
laws" to the Queen in Parliament, not the Queen in Council, and
we have a precedent to tell us that where power is delegated by
Parliament it cannot be exercised in a manner that is inconsistent
with any provision of the delegating statute.'8
Just as the Judicial Committee in Liyanage inferred from the
relevant provisions of the Constitution of Ceylon that judicial power
is to be exercised by, and only by, judges appointed and secured
in accordance with those provisions, so it can be inferred from
section 91 of the British North America Act that the power to make
laws, in the primary sense of that expression, is to be exercised by,
and only by, the Parliament of Canada constituted in accordance
with Part IV of that Act. Delegation under the Hodge case is limited
18
Booth v. The King (1915) 51 S.C.R. 20, 21 D.L.R. 558.
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to the power to elaborate or flesh out laws whose basic policy has
been prescribed by Parliament. If Parliament delegates power to
enact new laws or to alter existing Acts of Parliament, it can be
argued that it is passing on to another body the power to "make
laws" within the meaning of section 91. We are then forced to ask
what point there is in providing that it shall be lawful for the
Queen in Parliament to "make laws" if it turns out to be lawful for
the Queen in Council to do the same thing without a similar grant
of express authority to do so. 19
Applying this analysis to the Breathalyzer Reference in terms of
the language used in section 91, the advice and consent of the Senate
and House of Commons were obtained to a Bill which included provisions conferring a right on suspects to obtain a sample of their own
breath in a suitable container, obviously for purposes of independent
analysis as a basis for defense evidence. The Queen, through her
representative, assented to the Act as passed by both Houses, including section 120 delegating the proclaiming power. Then, in the
process of proclaiming the law, the Governor in Council in effect
repealed the provisions described above, to which both Houses
had given their consent and to which Royal assent had been obtained.
Irrespective of what Parliament may have intended, this was an
exercise by the Governor in Council of power vested exclusively in
the Queen in Parliament by the law of the Constitution. The fact
that the same thing was done once before in our constitutional
history20 does not make it lawful, but simply shows how long we
have been captives of a defective theory of constitutional law based
on a misconception of the Hodge case.
To adopt the English legal stance towards legislative supremacy
is to open but a single door in one's mind and to view the constitutional landscape always from the same narrow perspective. When
difficulties arise which cannot be dealt with from that perspective,
we simply ignore them. Thus in the Breathalyzer Reference the problem was seen as one of statutory interpretation to determine the
true meaning of section 120. The Supreme Court did not even
perceive the possibility that the legal separation of powers enacted
by the British North America Act imposed a limit on the permissible
effect of section 120, whatever the intention of Parliament may have
been.
19 Judicial enforceability of conditions attached to legislative powers by
constitutional enactments of the U.K. Parliament is illustrated by Harris v.
Minister of the Interior 1952 (2) S A. 428 (South Africa).
20 Re Gray (1918) 57 S.C.R. 150, 42 D.L.R. 1.
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To enter the kind of inquiry pursued in the Liyanage case is to
open other doors in one's mind, resulting in a more complex conception of Canadian constitutional law, an approach which is at
once more difficult and more responsive than the unidimensional
conception resulting from the uncritical adoption of English legal
theory. One of the doors opened leads to a theory of legal separation
of powers, a theory enunciated in Liyanage and applied above to the
question raised in the Breathalyzer Reference.
Two other significant lines of inquiry generated by the search
for a coherent theory of Canadian constitutional law will be pursued
in order to test the interpretation put forward here and to indicate
some of its implications. The first concerns the significance for
fundamental rights of allocating exclusive legislative competence in
relation to criminal law and procedure to the central legislature in
the Canadian federal system. The second concerns the lack of response among lawyers and judges to the CanadianBill of Rights.21
As to the first of these, the assertion made here is that the law
of the Constitution, by giving Parliament exclusive competence in
matters relating to criminal law and procedure, 1a has at the same
time entrusted it with basic political freedoms. The reason why this
is so is connected with the intention to give Canada a constitution
"similar in principle" to that of the United Kingdom, a similarity
which touches principles other than the basic principle of legislative
supremacy.
The chief proponents of this interpretation of the Canadian
Constitution have been Professor Frank Scott and the late Mr Justice
Ivan Rand. The latter, with his usual eloquence, stated the relevant
principle of the English constitution this way in Saumur v. City of
Quebec:
Strictly speaking, civil rights arise from positive law; but freedom
of speech, religion and the inviolability of the person, are original freedoms
which are at once the necessary attributes and modes of self-expression of
human beings and the primary conditions of their community life within
a legal order. It is in the circumscription of these liberties by the creation
of civil rights in persons who may be injured by their exercise, and by the
22
sanctions of public law, that the positive law operates.
The attempt to give effect to this principle by interpreting the
preamble to the British North America Act as entrenching in Canadian constitutional law those basic liberties that existed in England
in 1867 (an attempt first made in an obiter dictum in Reference re
S.C. 1960, c.44 (see R.S.C. 1970, Appendix III).
21aBritish North America Act, 1867, supra, note 1, s.91(27).
22 [1953] 2 S.C.R. 299, 329.
21
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Alberta Statutes) proved abortive. The reason, I suggest, is that it
set the matter into a framework of interpretation too broad and
general for Canadian judges to tolerate, and was vulnerable to having
the federal principle superimposed on it, so that Cartwright J. (dissenting) was able to assert in the Saumur case that:
There are thus no rights possessed by the citizens of Canada which cannot
be modified by either Parliament or the Legislature, but it may often be
a matter of difficulty to decide which of such bodies has the legislative
power in a particular case.24
It is one thing to "modify" a right by legislative action (and here
I assume the learned Judge meant to include freedoms in his use of
the word "rights") but quite another to make laws in relation to a
"right" which has the character of a fundamental political freedom.
Mr Justice Rand's sense of the importance of such freedoms in the
English Constitution should have been tied more explicitly to the
criminal law, which in both England and Canada has traditionally
defined the outer limits of these freedoms through the crimes of
sedition, criminal libel, criminal contempt of court and obscenity
(freedom of expression and of the press), unlawful assembly (freedom of assembly), criminal conspiracy (freedom of association),
and profaning the Sabbath and other offences against an established
church, (freedom of religion). Now we can add the offence referred
to as hate propaganda,24a and no doubt there are other criminal
offences that go to define the limits of fundamental freedoms. But
these are sufficient to make the point that at the core of the criminal
law of England traditionally there have been severely punished
offences going to public order and civil government, which offences
define the limits of political freedoms.
It is not suggested here that limits on fundamental rights have
been imposed exclusively through criminal law in English constitutional practice, but rather that their treatment in a direct manner for
the purpose of balancing order with liberty has been done through
the criminal law and is one of its central purposes. Therefore any provincial law which seeks to alter the basic balance created by the
criminal law should be found invalid. Provincial laws of defamation
may have the effect of limiting free speech, but only indirectly as an
incident to the quite different and central provincial concern of
providing civil redress for injury inflicted. Whether a law limiting
the freedom to picket is a sufficiently direct limitation to give it an
[1938] S.C.R. 100.
Supra, note 22, 384.
24
a Criminal Code, R.S.C. 1970, c.C-34, s.281.1, added by R.S.C. 1970, c.11 (1st
23
24
Supp.), s.1.
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essentially criminal law nature was the question faced in Koss v.
Konn.2 5 A more fully developed analysis of the core area of the
criminal law as it defines the limits of fundamental freedoms might
have made it less easy to characterize the provincial law in question
as one in relation to labour relations, an aspect of civil rights in the
province.
If this principle of the English Constitution is to be given expression in the Canadian context, more is required than an assertion
that the two levels of legislature in Canada have between them the
same omnipotence in law as the Parliament of the United Kingdom.
Some inquiry is needed into the special character of the heads of
legislative power described in sections 91 and 92 of the British
North America Act in the light of English Constitutional theory and
practice. When one finds that criminal law and procedure are represented as matters going to the peace, order and good government
of Canada, 21a it is relevant to look into the nature and purpose of
English criminal law in the context of constitutional history.
English constitutional law has a theoretical unity that is made
possible by the unwritten nature of that constitution. When we
distinguish between the Constitutionand the law of the Constitution,
we see that in Britain the former lacks this theoretical unity and
has been as concerned with preserving the rule of law through
the separation of powers as it has with preserving democratic values
through parliamentary supremacy. The fact that the rule of law in
Britain finds its ultimate base in political rather than legal sanctions
does not make it any the less a principle of the English Constitution
to which the similarity of the Canadian Constitution is referable.
25 (1962) 30 D.L.R. (2d) 242. In that case a provincial enactment which
limited freedom of expression through picketing was held by a majority of
the B.C. Court of Appeal to be a law relating to property and civil rights in
the Province, designed to protect the liberty of a person to carry on his
legitimate business in the Province and to the use of his premises without
interference. While the enactment clearly affected freedom of expression, it
was, in the Court's opinion, "in no way directed to the suppression of free
speech" (per Tysoe J., at 265, emphasis added). Whatever one may think of the
result in this case, the line of reasoning followed preserves the view expressed
by numerous judges in the Supreme Court of Canada that fundamental
political freedoms, as subjects of direct legislative intervention, are committed to the Parliament of Canada exclusively.
25a This premise is based upon a reading of the British North America Act,
supra, note 1 that perceives the enumerated heads of s.91 as instances of the
general power to legislate for the peace, order and good government of Canada.
1976]
53
It is in the process of giving legal expression to the civil liberties
dimension of the criminal law under the Constitution of the United
Kingdom that Canadian jurisprudence has been found wanting. The
theory of an implied bill of rights located in the preamble to the
British North America Act lacked the specificity necessary for judicial development of principles. It also had the effect of subordinating
both the federal principle and the principle of legislative supremacy.
A Canadian theory of fundamental political freedoms that is related
to the central legislature's responsibility for criminal law overcomes
the difficulty by locating these freedoms at a common level with the
principle of legislative supremacy and the federal principle, calling
for a rational accommodation where conflict seems to exist. The
implied-bill-of-rights theory based on the preamble suggested an
either/or choice between apparently conflicting principles, in which
the choice of legislative supremacy as the superior value was inevitable, given the dominance of the Hodge-based conception of Canadian
constitutional law reflected in the statement of Cartwright J. in the
Saumur case quoted above. 26
By transferring the focus of our theory of fundamental rights
from the preamble to section 91(27) of the British North America
Act, we may be able to broaden our conception of Canadian constitutional law in terms of "similarity in principle" and to see that we
adopted in 1867 the English principle that the criminal law, with its
severe penalties and rigorous procedural requirements, is the instrument through which the community defines the limits of fundamental
political freedoms. If the federal division of legislative powers on the
subject carries this implication, then attempts by provincial legislatures to impose further limits on the area of freedom left by the
federal criminal law become repugnant to the "similar" Constitution,
however supreme that legislature may be for other purposes.2 7
2
0 Supra, note 22.
27 The clearest example of a provincial attempt to protract the limits on a
political freedom prescribed by federal criminal law was Alberta's An Act to
ensure the Publication of Accurate News and Information, Bill 9, 3d. Sess.,
8th Leg., Alta. Nat. Ass., 1937 which was held ultra vires in Reference re
Alberta Statutes, supra, note 23 because it was part of a legislative scheme
at the core of which was a statute that encroached on exclusive federal competence in relation to banks and banking. Had the Act stood alone, the
Supreme Court might have been forced to consider the thesis later developed
by Rand J. that freedom of the press is the residual area left after the criminal
law prohibits certain acts. Provincial libel laws can hardly be said to define
the limits of political freedom of expression since their concern is with
harm done between citizens. Speech or writing is the action through which
the harm is done, but such laws are directed at the individual harm and its
McGILL LAW JOURNAL
[Vol. 22
While this repugnancy will obviously be expressed in terms of
ultra vires, a developed theory of constitutional law requires that
this important dimension of the theory be articulated by judges, as
Rand J. attempted to do in the Switzman 2 and Saumur"9 cases. If it
is not, trial judges and legal counsel will fill the gap in analysis by
falling back on the overemphasized principle of legislative supremacy
in Canadian constitutional law.
These two cases, Switzman and Saumur, while perhaps the bestknown instances of judicial invocation of the exclusivity of the
federal criminal law power for civil liberties purposes, are far from
isolated examples. There is a fairly consistent and negative judicial
response to provincial encroachments on fundamental freedoms, especially freedom of expression. The result has been that the concur2 0 and applied not
rency doctrine developed in O'Grady v. Sparling,
3
only to highway safety but also to public health ' and child welfare 2
as well as other situations 3 3 has not been extended to areas where the
criminal law defines the limits of fundamental freedoms. For example, in R. v. Board of Cinema Censors3 Batshaw J. of the Quebec Superior Court denied the provincial legislature entry into the field of
suppression and control of obscene publications, which bears on freedom of expression, even though a respectable judgment upholding
the legislation could have been built on the authority of O'Grady
and subsequent decisions. In Kent District Corp. v. Storgoffr
Whittaker J. of the Supreme Court of British Columbia struck down
a municipal by-law which denied a group of Sons of Freedom
Doukhobors entry into a municipality to protest the imprisonment
of their men. The learned Judge referred to section 64 of the Criminal
Code3 6 prohibiting unlawful assemblies, and to the preventive powers
conferred by section 27 of the Code as the applicable laws for the
problem faced by the municipality. Again, a notion of municipal
power delegated by the Province to control the use of its streets,
coupled with an O'Grady concurrency analysis, could have been
used to support the by-law had the Judge been unaware of, or inredress, not at the speech or writing per se. They regulate civil rights rather
than
define civil liberties, the latter being of a fundamental political nature.
28
SSwitzman v. Elbling [1957] S.C.R. 285.
29
Supra, note 22.
30 [1960] S.C.R. 804.
31
E.g., R. v. Snyder and Fletcher (1967) 61 W.W.R. 112.
32
E.g., R. v. Chief (1964) 42 D.L.R. (2d) 712.
3
3E.g., securities, see Smith v. The Queen [1960] S.C.R. 776.
34 (1968) 69 D.L.R. (2d) 512.
35 (1962) 38 D.L.R. (2d) 362, 41 W.W.R. 301, 308.
36 S.C. 1953-54, c.51 (now R.S.C. 1970, c.C-34).
1976]
55
different to, the coincidence of the criminal law power and the
limits of fundamental freedoms in this area of activity.
Indeed, numerous counter-examples can be found. One of them
is the case of Dupond v. Ville de Montrgal37 where the decision of
Tr6panierS. of the Quebec Superior Court declaring ultra vires
Montreal's anti-demonstration by-law of 1969 primarily on the
authority of Switzman v. Elbling, has now been reversed by the
Quebec Court of Appeal on a municipal law-and-order rationale, with
the concurrency doctrine called in in aid. s
The failure to understand that cases like Dupond involve more
than the federal division of legislative powers results from the corresponding failure to appreciate the interpretation of our constitutional law put forward most vigorously and persistently by Professor Scott 9 and introduced, however precariously, into our jurisprudence by Mr Justice Rand. If the Dupond case goes on appeal
to the Supreme Court of Canada it will provide the Court with an
opportunity to explore the civil liberties implications of the federal
competence in relation to criminal law and procedure. The appearance of the Canadian Bill of Rights40 since Switzman and Saumur,
connecting criminal law (through the words "Every law of Canada"
in section 2) to the fundamental freedoms set out in section 1 of the
Bill through standards of judicial interpretation, makes it especially
important that the Court explore the suggested link. The result could
well be a warning against interpreting O'Grady v. Sparling4' as indicating provincial access to areas where the Criminel Code4' defines
the limits of fundamental political freedoms. While in O'Grady the
Supreme Court stated that the province was pursuing a different,
non-criminal purpose, it is obvious that the effect of the decision
was to allow the province to extend criminal sanctions beyond the
limit Parliament had decided was appropriate.
Much more is at stake than the need to accommodate federal
and provincial purposes within the federal framework, and it would
be of the greatest importance if the Supreme Court were to develop
the added dimension of fundamental freedoms. This it could do by
asking afresh what is the full significance of criminal law and procedure in English constitutional theory with its very indirect approach
3 S.C.M. 16,086, June 18, 1970, unreported. The by-law in question and the
text of the judgment are reprinted in the Appendix to this article, infra.
38 C.A. 13,482 and 13,590, September 26, 1974, unreported.
39 F. R. Scott, Civil Liberties and Canadian Federalism (1959).
40Supra, note 21.
41Supra, note 30.
4 R.S.C. 1970, c.C-34.
McGILL LAW JOURNAL
[Vol. 22
to fundamental rights, and then asking whether that significance has
properly been recognized in the interpretation of section 91(27) of
the British North America Act, which allocates exclusive legislative
competence over that field to the central legislature in a federal
system whose constitution is intended to be similar in principle to
that of the United Kingdom.
I turn now to the Canadian Bill of Rights to consider whether
that Act of Parliament takes on a different and more acceptable
character when viewed through a changed conception of Canadian
constitutional law. This can best be done by first considering what
is unacceptable about the Bill when viewed through the dominant,
Hodge-based conception of the supremacy of Parliament. Returning
to that vantage point for a moment, it becomes appropriate to ask
how a statute like the Canadian Bill of Rights would sit with the
English Parliament. When this kind of problem was raised in the
Drybones43 case, it led the dissenting Judges to conclude that the
Bill offended the principle of legislative supremacy if given effect to
the point of a judicial order rendering an enactment of Parliament
inoperative. Hence they declined to use the Bill to protect Drybones'
asserted right to equality before the law. But because the Bill itself
is an Act of the supreme Parliament, as in the Breathalyzer Reference, all the Judges declined to examine the case directly in the
context of constitutional theory and instead presented their conclusions as an interpretatio, of Parliament's true intention in
enacting the Bill. This is what an English judge would have done.
The most spectacular feat of avoiding underlying questions of
constitutional theory has been the use of the declaratory form of
section 1 of the Bill as indicating a legislative intention to perpetuate the law on human rights and fundamental freedoms as it
existed in 1960 when the Bill of Rights was enacted.4 It is no compliment to the perception of those who adopt this position nor to
that of the legislators who enacted the Canadian Bill of Rights,
that the law as it stood in 1960 included a Supreme Court decision
upholding the right of a tavern operator to refuse service to a black
man because of his colour, a right which the Court considered flowed
from freedom of commerce. 45 Other cases could be cited to show
that it is ludicrous to attribute to Parliament in enacting the
43
R. v. Drybones [1970] S.C.R. 282, (1969) 9 D.L.R. (3d) 473.
"This was the basis of the minority position in Drybones and has begun
to emerge as a majority position in the recent decisions in Attorney-General of
Canada v. Lavell [1974] S.C.R. 1349, (1973) 38 D.L.R. (3d) 481 and R. v.
Burnshine (1974) 44 D.L.R. 584 (S.C.C.).
45 Christie v. York Corp. [1940] S.C.R. 139.
19761
57
CanadianBill of Rights the intention of freezing the existing law, not
to mention the concern expressed during the debate that preceded the
Bill about serious denials of human rights in the world community
and about the lack of real teeth in Canadian law to back up vague
generalities about Magna Carta and the common law.
The lack of response to the Canadian Bill of Rights has been
reinforced, or perhaps provoked, by a sense that the general formulations of section 1 of the Bill, such as the notions of equality
before the law and freedom of speech, are more suitable as
guides to legislative action than as standards for judicial reasoning
and decision. The result has been a generally negative stance toward
the Bill of Rights. An active response is seen as an improper invasion
by the judiciary of the legislative domain and thus a usurpation by
judges of the supremacy that belongs to Parliament. The retreat from
the positive position taken in Drybones, most clearly evidenced by
the Lavell 6 case, is accompanied by statements which indicate a
strong sense of judicial guilt at having tasted what is perceived as
the forbidden fruit of judicial supremacy. The philosopher-king
scarecrow used by so many who subscribe to the Hodge-based
conception of Canadian constitutional law has had its effect on
judicial attitudes.
Before re-examining the Canadian Bill of Rights through the
different conception of Canadian constitutional law presented earlier
in this article, it is worth observing that the Bill as an interpretation
statute directed at the construction and application of laws of Canada, is designed primarily as authority for judicial review of the
exercise of executive power. The Drybones case was one where
judicial ingenuity in interpretation was exhausted and the Court
was faced with a choice between two conflicting Acts of Parliament.
By holding section 94 of the Indian Act 47 inoperative the Court was
carrying out what it considered to be the will of Parliament. While
Drybones did raise an important question of constitutional theory,
the question was never really discussed because the judicial conscience conditioned by the Hodge-based conception of the supremacy
of Parliament indicated that the Court was doing the impossible,
namely impeaching an Act of Parliament on other than federal
constitutional grounds.
The members of the Supreme Court were aware that to hold an
enactment inoperative is quite different to holding it ultra vires,
which is why the majority was able to reconcile the decision with
46 Supra, note 44.
47R.S.C. 1952, c.149 (now R.S.C. 1970, c.I-6).
McGILL LAW JOURNAL
[Vol. 22
predominant legal theory. But their uneasiness at embarking on the
supervisory function conferred on them by the Canadian Bill of
Rights is beginning to show particularly, as already mentioned, in
the Lavell case. If we cannot escape the Hodge-based conception of
Canadian constitutional law that leads Canadian judges mistakenly
to adopt the stance of English judges (although Liyanage suggests
that English judges would not fall into the same trap if given the
same constitutional responsibilities), then the Canadian Bill of
Rights may die a quiet death for want of a judiciary that is able
to cope with its responsibilities. That would be unfortunate because
judicial development of a satisfactory human rights jurisprudence
is going to be equally difficult on whatever authority it is based,
given the neglect of this area for so long.
Unfortunately, the reaction to Drybones has led most members
of the Supreme Court to reject the Bill of Rights even as an interpretation statute in reviewing the exercise of executive power. In
Hogan v. The Queen the majority held evidence to be admissible
even though obtained following clear and deliberate violation by
police of the accused's right to retain. and instruct counsel without
delay when detained, a right specified by section 2(c)(ii) of the
Bill of Rights. The tendency to see the spectre of Drybones in every
Bill of Rights argument is apparent in the Burnshine case. 40 The
determination of the majority to retreat from what is believed to be
the forbidden ground of impinging upon the supremacy of Parliament seemed to disable them from seeing that Chief Justice Laskin,
along with Justices Spence and Dickson, were responding to the
will of Parliament by redirecting the main thrust of judicial concern
into development of the Bill as an interpretation statute. Using the
Bill of Rights as a springboard to a broader, more creative approach
to statutory interpretation, the feared confrontations could be
avoided.
How do we come to terms with the judicial responsibility imposed by the Canadian Bill of Rights? Perhaps we can say that
Canadian judges have long engaged in the process of judicial review
of legislation through application of the division of legislative
powers, so that we are no longer concerned with the purity of
legislative supremacy. While this response may reduce judicial
uneasiness about Drybones it does not provide a theoretical framework that will enable judges to give effect to the Canadian Bill of
Rights in a manner consistent with the fundamental principles of
our Constitution.
48
(1975) 48 D.L.R. (3d) 427.
49 Supra, note 44.
1976J
59
The search for such a framework takes us back yet again to the
preamble to the British North American Act,4 a with its reference to a
constitution similar in principle to that of the United Kingdom. The
judicial power of interpretation in Britain has long been the judges'
strongest tool for maintaining the rule of law. Recently it has been
used in the Anisminic5° and Padfield5 cases to maintain a functional
separation between the Executive on the one hand and the Judiciary
and Parliament respectively on the other. At the constitutional level,
the judicial power of interpretation has been used in England to
protect fundamental rights through a series of presumptions which
require clear legislative language to overcome. And the necessary
clear language may prove too risky to a government unwilling to face
a hostile opposition, press, or public, so that the interplay of
judicial and political processes results in effective protection of
fundamental rights.
This aspect of English constitutional law is described by Keir and
Lawson in the following way:
The principle of parliamentary sovereignty therefore implies that the
courts will not intrude into the legislative process, and that an Act of
Parliament validly passed under the appropriate procedure and in the
accustomed form must be put into effect. Its meaning and effect must,
however, be examined if any question about them arises in the course of
litigation. Here the canons of interpretation followed by the judges
embody in an attenuated form the ancient doctrine, already referred to,
that there was a sense in which the common law was fundamental. A
statute which is contrary to the reason of the common law or purports to
take away a prerogative of the Crown is none the less valid, but it will, so
far as is possible, be applied in such a way as to leave the Prerogative
or the common law rights of the subject intact. To this extent the reason
49a Supra, note 1.
15OAnisminic v. Foreign Compensation Commission [1969] 2 W.L.R. 163,
where the House of Lords declared a decision of the Commission to be a
nullity even though the statute establishing the Commission provided that
"[t]he determination by the Commission of any application made to them
under this Act shall not be called in question in any court of law"; Foreign
CompensationAct, 1950, 14 Geo.VI, c.12, s.4(4) (U.K.). The judges explained this
apparent defiance of the will of Parliament by saying that when the Commission exceeds the powers delegated to it under the Act, the resulting order
is a nullity which cannot be a "determination" to which the privative clause
applies.
51Padfield v. Minister of Agriculture [1968] 2 W.L.R. 924. Here the House
of Lords held that a decision of the Minister made in the exercise of a
discretion was subject to judicial interference if its effect, in the view of
the judges, was to frustrate the policy of the Act. Observing that the policy
and objects of the Act were matters of legal construction of the Act, the
House of Lords ordered mandamus against the Minister requiring him to
appoint a committee of investigation, which he had decided he would not do.
McGILL LAW JOURNAL
[Vol. 22
of the common law still prevails; we cannot say that Parliament cannot
do any of these things, but we can still say that there is a presumption
against its doing them. If it is clear from the express words of the statute
or by necessary implication that Parliament has intended to do them,
52
cadit quaestio.
These authors then go on to describe the presumptions of inter-
pretation in English law, including the following presumption against
repeal of laws that protect fundamental liberties:
The judges seem to have in their minds an ideal constitution, comprising those fundamental rules of common law which seem essential to
the liberties of the subject and the proper government of the country.
These rules cannot be repealed but by direct and unequivocal enactment.
In the absence of express words or necessary intendment, statutes will be
applied subject to them. They do not override the statute, but are treated,
as it were, as implied terms of the statute. Here may be found many of
those fundamental rights of man which are directly and absolutely safeguarded in the American Constitution or the Ddclaration des droits de
'homme. In England they are protected, but not absolutely, for Parliament may, if it thinks fit, and if it expresses its intention unequivocally,
take them away. It is worthy of mention that in Canada, where the same
conditions apply, the Dominion Parliament has enacted a Bill of Rights
... which is protected against facile invasion by rules such as that no
statute shall be construed as interfering with the enumerated fundamental liberties unless it also includes an express statement that it is to
operate notwithstanding the Bill of Rights.53
The reference to the CanadianBill of Rightsr is interesting, and im-
plicit in the assertion that the same conditions apply in Canada is
the proposition that the Bill is but an extension of this principle
of protection of fundamental liberties through the power of interpretation.
Interpretation Acts, both in Canada and in England, tend to
provide fairly specific rules of construction for judicial guidance,
although it is common to find in Canadian versions a provision
stating that every enactment shall be deemed remedial and shall
receive such fair, large and liberal interpretation as will best
ensure the attainment of its object according to its true intent.
Thus, both the use of the judicial power of interpretation -to
protect fundamental liberties and the use of statutes to enact rules
of construction are features of the model on which the Canadian
Constitution is based. When the two are combined in a single
statute and called a Canadian Bill of Rights, the identity of name
52 D. L. Keir and F. H. Lawson, Cases in ConstitutionalLaw 5th ed. (1967), 9.
53 Ibid., 11.
53a Supra, note 21.
54 See, e.g., InterpretationAct, R.S.C. 1970, c.I-23, s.11.
1976J
61
with the much more potent, entrenched U.S. Bill of Rights should
not scare us off the important task of developing our own Bill of
Rights within an articulated theory of Canadian constitutional law.
This brings us back to our starting point - the misquotation of
5
Hodge v. The Queenr
in the Maritime Bank case.5 6 A full sense of
judicial responsibility depends upon realizing that the quality of
legislative supremacy that exists under the Canadian Constitution is
quite different to that found in the United Kingdom, and seeing why
that is so and what consequences flow from it. This is not to say
that a written Bill of Rights in the United Kingdom could not lead to
a British Drybones, but rather that the established responsibility
of Canadian judges for constitutional adjudication makes it unnecessary to undergo any major adaptation of legal theory and judicial
attitudes to accept as proper the ultimate step taken by the majority
in Drybones. Clarifying our theory of constitutional law does not
make possible an outcome like that in Drybones - that outcome
was possible all along because a court of law must always make a
choice when faced with conflicting legislative edicts. It was the
kind of conflict that was new, created by the enactment of human
rights-based standards of interpretation. What the clarification of
Canadian constitutional theory can do is enable judges to remove
the nagging sense of impropriety that now threatens the modest
progress we have made toward effective legal protection against
official violation of those rights and freedoms that we assert to
be essential to the parliamentary system.
5
O
Supra, note
56
7.
Supra, note 8.
-
McGILL LAW JOURNAL
[Vol. 22
APPENDIX
Reglement
By-law
3926*
RZglement concernant certaines mesures exceptionnelles pour assurer aux citoyens la paisible jouissance de leurs libertds, rdglementer I'utilisation du domaine public et prdvenir les dmeutes et autres troubles de l'ordre, de la paix
et de la sdcuritd publics.
A la seance du conseil de la ville
de Montrdal tenue le 12 novembre
1969,
le conseil d6cr6te:
ATTENDU qu'il est imp6rieux d'assurer la protection des citoyens dans
la jouissance de leurs libertds et
de la paix publique et contre toute
violence bi leur personne et h leur
propri~t6;
ATTENDU qu'il s'est av6r6 que
certaines manifestations s'accompagnent souvent d'actes de violence, de
vols h main armde et d'autres actes
criminels;
ATTENDU qu'il y a lieu de prendre des mesures d'urgence exceptionnelles pour la protection des citoyens
et le maintien de l'ordre et de la
paix publics;
ATTENDU qu'il y a lieu de rdglementer l'utilisation du domaine public et de garantir les droits du
citoyen h la paisible croissance du
domaine public de la Ville;
1. - Toute personne a le droit
d'utiliser et de jouir des voies et
places publiques et du domaine public de la ville de Montrdal dans la
tranquillit6, la paix et l'ordre publics;
2. - Les assembldes, d6filds ou
autres attroupements qui mettent en
danger la tranquilit6, la sdcurit6, la
paix ou d'ordre public sont interdits
*
Ville de Montrdal
Montreal City
By-Law relating to exceptional
measures to safeguard the free
exercise of civil liberties, to regulate the use of the public domain and to prevent riots and
other violations of order, peace
and public safety.
At the meeting of the Council of
the City of Montreal held on November 12, 1969,
Council ordained:
WHEREAS it is imperative to
provide for the protection of citizens
in the exercise of their liberties,
safeguard public peace and prevent
violence against persons and property;
WHEREAS violence, armed robberies and other criminal acts often
accompany certain demonstrations;
WHEREAS it is in order to enact
exceptional emergency measures for
the protection of citizens and the
maintenance of peace and public
order;
WHEREAS it is in order to regulate the use of the public domain
and safeguard the right of citizens
to the peaceful enjoyment of the
public domain of the City;
1. - Anyone is entitled to the use
and enjoyment of the streets, public
places and public domain of the
City of Montreal untroubled and
in peace and public order.
2. - Assemblies, parades or other
gatherings that endanger tranquility,
safety, peace or public order are
prohibited in public places and
Montreal City By-laws, "Nos.3758-3986, 1969.
19761
sur les voies et places publiques
et dans les parcs ou autres endroits
du domaine public de la Ville;
thoroughfares, parks or other areas
of the City's public domain.
3. - Une personne qui participe
h ou est pr6sente h une assembl6e,
un d6fil6 ou un attroupement dans
le domaine public de la Vile ne doit
molester, bousculer ou autrement
goner le mouvement, la marche ou
la prdsence des autres citoyens qui
utilisent dgalement le domaine public de la Ville h cette occasion;
3. - No person participating in
or present at an assembly, parade or
other gathering on the public domain
of the City shall molest or jostle
anyone, or act in any way so as to
hamper the movement, progress or
presence of other citizens also using
the public domain of the City on that
occasion.
4. - Toute assembl6e, d6fil6 ou
attroupement dans le domaine public dont le ddroulement s'accompagne d'une violation d'un des articles du present r~glement ou d'actes,
conduites ou propos qui troublent la
paix ou l'ordre public devient d~s
lors une assembl6e, un d6fi16 ou un
attroupement qui met en danger la
tranquillit6, la s6curit6, la paix ou
l'ordre public au sens de 'article 2
du r~glement et doit imm6diatement
se disperser;
5. - Lorsqu'il y a des motifs raisonnables de croire que la tenue
d'assembl6es, de d6fil6s ou d'attroupements causera du tumulte, mettra en danger la s6curit6, la paix ou
l'ordre public, ou sera une occasion
de tels actes, sur rapport du directeur du service de la police et du
chef du contentieux de la Ville
qu'une situation exceptionnelle justifie des mesures pr6ventives pour
sauvegarder la paix ou l'ordre public, le comit6 exdcutif peut, par ordonnance, prendre des mesures pour
emp~cher ou supprimer ce danger
en interdisant pour la p6riode qu'ild6termine, en tout temps ou aux
heures qu'il indique, sur tout ou
tne partie du domaine public de la
Ville, la tenue d'une assembl6e, d'un
d6fil6 ou d'un attroupement ou de
toute assemblde, d6fil6 ou attroupement;
6. - Toute personne doit se conformer immdiatement k l'ordre
d'un agent de la paix de quitter les
4. - Any assembly, parade or
gathering on the public domain
which gives rise to a violation
against any article of this by-law
or to any acts, behaviour or utterances which disturb the peace or
public order shall ipso facto be an
assembly, parade or gathering which
endangers tranquility, safety, peace
or public order under the terms
of Article 2 of this by-law, and shall
disperse forthwith.
5. - When there are reasonable
grounds to believe that the holding
of assemblies, parades or gatherings
will cause tumult, endanger safety,
peace or public order or give rise
to such acts, on report of the
Directors of the Police Department
and of the Law Department of the
City that an exceptional situation
warrants preventive measures to
safeguard peace or public order,
the Executive Committee may, by
ordinance, take measures to prevent
or suppress such danger by prohibiting for the period that it shall
determine, at all times or at the
hours it shall set, on all or part of
the public domain of the City, the
holding of any or all assemblies, parades or gatherings.
6. - All persons shall immediately
obey the order 'of a peace officer
to leave the scene of any assembly,
McGILL LAW JOURNAL
lieux de toute assemblde, ddfild ou
attroupement tenu en violation du
present r~glement;
7. - Quiconque participe h une
assemblde, d6fild ou attroupement
tenus en violation du prdsent r~glement ou contrevient autrement, de
quelque mani~re h l'une des dispositions du prdsent r~glement, est
passible d'un emprisonnement ou
d'une amende, avec ou sans frais,
pour le terme ou le montant que la
cour municipale de Montral ddterminera, h sa discrdtion, et h d6faut
du paiement immddiat de l'amende
ou de l'amende et des frais, selon le
cas, d'un emprisonnement pour un
terme d6termin6 par la cour municipale, h sa discrdtion; 'emprisonnement pour ddfaut du paiement de
l'amende ou des frais doit cesser en
tout temps avant l'expiration du
terme d6termind par la Cour, sur
paiement de l'amende ou de l'amende et des frais, selon le cas.
L'emprisonnement ne doit pas 6tre
d'une durde de plus de soixante (60)
jours et l'amende de plus de cent
(100) dollars.
[Vol. 22
parade or gathering held on (sic)
violation of this by-law.
7. - Whoever participates in an
assembly, parade or gathering held
in violation of this by-law or otherwise contravenes, in any way, any
provision of this by-law, shall be
liable to either imprisonment or a
fine, with or without costs, for the
term or the amount that the Municipal Court of Montreal will determine, at its discretion, and failing
the immediate payment of such fine,
or such fine and costs, as the case
may be, to imprisonment for a term
to be determined by the said Municipal Court, at its discretion; the
imprisonment for failure to pay the
fine or costs shall cease at any time
before expiry of the term determined
by the Court upon payment of the
fine or of the fine and costs, as
the case may be.
Such imprisonment shall not exceed sixty (60) days nor such fine
one hundred (100) dollars.
The power of the Executive Committee under section 5 of the
by-law to authorize the prohibition of all public assemblies for a
period to be determined at its discretion has been used twice:
Ordinance No. 1 prohibited any such assembly for a period of thirty
days from November 12, 1969 anywhere in the City of Montreal.
Ordinance No. 2 prohibited assemblies for a period of thirty days
from October 28, 1971 in an area bounded by the St Lawrence and
Dorchester Boulevard (North and South) and St Denis Street and
Bleury Street (East and West).
DUPOND v. VILLE DE MONTREAL ET AL., S.C.M. 16,086, June
18, 1970, The Honourable Mr Justice Paul Trgpanier (unreported).
La requ6rante demande 1'annulation du r~glement num6ro 3926 de la
Ville de Montr6al et de l'ordormance num6ro 1 ddict6e en rapport avec ledit
r~glement qui s'intitule comme suit:
"R~glement concernant certaines mesures exceptionnelles pour assurer
aux citoyens la paisible jouissance de leurs libert6s, r~glementer l'utilisation du domaine public et pr6venir les 6meutes et autres troubles de
l'ordre, de la paix et de la sdcurit6 publics."
19761
65
La requ~rante allgue que le r~glement et l'ordonnance en question sont
nuls et de nul effet, ultra vires et anticonstitutionnels pour les raisons suivantes:
a) ils sont contraires au pr~ambule de la Loi de 1867 concernant l'Am~rique du Nord Britannique qui mentionne que le Dominion canadien est
celle du Royaumerdgi par une constitution semblable en principe
Uni, cette derni~re de m~me que les us, coutumes et traditions britanniques ayant reconnu, depuis des siicles, la libert6 de parole, la libert6 de
reunion, la libert6 de presse et la libert6 d'association, toutes ces libertds,
y compris celle de manifestation, faisant partie du libre fonctionnement
de l'organisation politique au Canada;
b) ils sont en contravention avec le prdambule de l'art. 91 de la Loi de
1867 concernant l'Am~rique du Nord Britannique qui mentionne que
le Parlement canadien pourra lgif~rer en vue de la paix, de l'ordre
public et de la bonne administration au Canada;
c) les libert~s de parole, de reunion, d'association, de presse, de manifestation, de religion, sont de stricte juridiction f~ddrale, et non pas
des mati~res d'une nature purement locale ou priv~e, et ne concernent
pas d'avantage la propri~t6 et les droits civils;
d) ils cr~ent une nouvelle offense criminelle, contrairement A la Loi de
1867 concernant l'Am~rique du Nord Britannique qui donne juridiction
exclusive au Parlement canadien en mati~re de droit penal, et sont de
toutes farons, un empiitement sur la juridiction exclusive du Parlement canadien, en mati~re de droit penal;
e) vu ce susdit, les lois de cette province n'ont pas juridiction pour
accorder 6 rintim6 le pouvoir d'adopter les susdits r~glement et ordonnance, et cons6quemment la charte de l'intime ne peut lui donner
l'autorisation n~cessaire h l'adoption desdits r~glement et ordonnance;
f) ils sont en contravention avec la Ddclaration canadienne des droits,
qui mentionne que les libert~s de parole, de reunion, d'association, de
presse ont exist6 au Canada et continueront h exister pour tout individu au Canada, et que toute loi du Canada doit s'interprdter et s'appliquer
de mani~re h ne pas supprirner, restreindre ou enfreindre l'un quelconque des droits ou des libert~s reconnus et d6clards par ladite D~claration canadienne des droits, .ni h en autoriser la suppression, la diminution ou la transgression;
g) ils sont abusifs, arbitraires et discrirninatoires dans leur prdtention
ill~gale de contr6ler les libert6s de parole, de presse, de reunion et
d'association, en ce qu'ils ne mentionnent aucune condition oi aucun
crit~re pour leur application;
h) ils sont contraires 6 la justice naturelle;
Les procureurs des quatre parties intdressdes ont produit des notes
et autoritds oii l'on cite ou rdf~re 6. une abondance de decisions et d'opinions
d'auteurs;
Les procureurs de la Ville de Montreal et ceux du Procureur gdnral
de la Province soutiennent la validit6 du r~glement et de l'ordonnance;
Le procureur du Gouvernement du Canada qui n'a trait6 que de la
question de constitutionnalit6 du r~glement en relation avec le droit criminel, la libert6 de parole et la Declaration des droits de l'homme a conclu que
McGILL LAW JOURNAL
[Vol. 22
le r~glement est nul en son entier comme dtant de la nature du droit
criminel;
A la page 18 de ses notes, il pose bien le probl~me en s'exprimant ainsi:
"A notre sens la question qui se pose ici et hi laquelle la Cour doit
r6pondre a trait h la nature, la substance et le but du r~glement 3926
de la vile de Montreal.
S'agit-il de legislation relative au droit criminel (AA.B.N. art. 91 paragraphe 27)? Si oui, le r~glement est nul comme outrepassant la juridiction de la ville et de la province, et 'on n'a pas &i proc6der plus
loin. Si non, il faut se poser une autre question: s'agit-il de l6gislation
relative h des mati~res de juridiction provinciale 6num6rdes h l'art.
92 A.A.B.N., soit, par exemple le paragraphe 16, "Generally all Matters
of a merely local or private Nature in the Province", comme 6tant relatif
soit h l'utilisation et la protection des rues, parcs et autres parties du
domaine public de la ville, soit (possiblement) au maintien de l'ordre
et la protection de la propri6td pour rencontrer une situation purement
locale (ce qui en ferait un simple r~glement de police)? Si la r6ponse
Ai cette question est affirmative le r~glement est valide, dans le cas
contraire il est nul."
I1 aurait pu ajouter h sa deuxi~me question, soit le paragraphe 13
"Property and civil rights in the Province";
Cherchons donc hi ddcouvrir la nature, la substance et le but du r6glement;
A la lecture des quatre paragraphes du prdambule du r~glement, l'on
constate ais~ment qu'il est dirig6 contre certaines manifestations s'accompagnant souvent d'actes de violence, de vols h main armde et d'autres actes
criminels et que le but a atteindre est la protection des citoyens dans la
jouissance de leurs libertds quant h eux et quant h leur personne et h leur
propri6t6, et, hi cette fin, r~glementer l'utilisation du domaine public;
L'article 1 du r~glement n'est qu'une d6claration de principe quant au
droit de toute personne d'utiliser dans la paix et l'ordre les voies et
places publiques de la ville;
L'article 4 est un article de d6finition;
Les articles 6 et 7 concernent l'obligation de se conformer au r~glement
et la pdnalitd hi 6tre imposde en cas de violation;
Ce sont les articles 2, 3 et 5 qui constituent r6ellement la substance du
r~glement;
L'article 2 interdit les assembldes, d6filds ou autres attroupements qui
mettent en danger la tranquillit6, la sdcurit6, la paix ou l'ordre public.
Cette interdiction est restreinte au domaine public de la Ville. L'interdiction pr6vue, h cet article 2, fait d6jhi le sujet des articles 64, 65 et 66 du
Code criminel avec cette variante qu'elle ne s'applique qu'au domaine public
de la Ville alors que ces dispositions du Code criminel reroivent, en plus,
leur application partout ailleurs;
L'article 3 vise non seulement celui qui participe mais aussi celui qul
est present hi une assemblde, un d~fild ou un attroupement et lui interdit
de molester, bousculer ou autremeni g~ner le mouvement, la marche ou la
prdsence d'autres citoyens. Ici encore cette interdiction est limitde au domaine public de la Vile. Cette interdiction est ddjh couverte en grande partie
1976J
67
par les articles 230, 231 et 232 du Code criminel, quant aux voies de fait,
et, l'article 372, quant aux m6faits;
Au surplus, cet article 3 ne viendrait-il pas en conflit, ou ne serait-il
pas incompatible avec l'article 30 du Code criminel en interdisant a une
personne pr~sente d'intervenir pour empecher une violation de la paix sans
compter que cette interdiction pourrait possiblement s'appliquer h un
agent de la paix: contrairement aux articles 31 et 32 du Code criminel;
Enfin l'article 5 donne le pouvoir au comit6 ex~cutif de la Ville d'6mettre une ordonnance pour interdire sur le domaine public de la Ville la tenue
de toute assembl6e, d~fil6 ou attroupement Cet article va au delbt du Code
criminel en ce que selon l'article 68 de ce code pour que l'ordonnance de
se disperser soit proclam6e, il faut que 1'6meute ait d6jh commenc6 et
qu'au moins 12 personnes y participent. Il y a toujours aussi cette restriction au domaine public de la Ville;
Il semble donc que ce r6glement en substance traite de deux mati~res
diff6rentes, l'une en relation avec le droit criminel en regard des interdictions des articles 2, 3 et 5, et l'autre en ce qu'il affecte la propridt6 et les
droits civils des citoyens d'une part, et l'utilisation du domaine public de
la Ville d'autre part;
Cette dualit6 d'aspect d'une lgislation a fait l'objet de nombreuses
d6cisions des plus hauts tribunaux h partir de celles de The Citizens Insurance
Company of Canada v. Parsons, (1881-82) 7 A.C. 96, et de Russell v. The Queen,
(1881-82) 7 A.C. 829;
Il serait fastidieux de les citer toutes. Je me bornerai h extraire de
celles qui me semblent les plus appropri~es h notre cas, les principes sur
lesquels je base ma decision;
Dans la cause pr6cit~e de Russell v. The Queen, le Conseil priv6 apr~s
avoir donn6 quelques exemples de loi cr~ant une offense criminelle, tel
que le fait pour un homme de mettre volontairement le feu hi sa maison ou
de surmener son cheval, ou de lois restreignant la vente d'animaux atteints de maladie contagieuse s'exprimait ainsi:
"Laws of this nature designed for the promotion of public order, safety
or morals and which subject those who contravene them to criminal
procedure and punishment belong to the subject of public wrongs
rather than that of civil rights. They are of a nature which fall within
the general authority of Parliament to make laws for the order and
good government of Canada, and have direct relation to Criminal law
whidh is one of the enumerated classes of subjects assigned exclusively
to the Parliament of Canada.
Few, if any, laws could be made by Parliament for the peace, order and
good government of Canada which did not in some incidental way affect
property and civil rights; and it could not have been intended, when
assuring to the provinces exclusive legislative authority on the subjects
of property and civil rights, to exclude the Parliament from the exercise
of this general power whenever any such incidental interference would
result from it. The true nature and character of the legislation in the
particular instance under discussion must always be determined in
order to ascertain the class of subject to which it really belongs."
Une fois la mati~re d6termin6e, il faut chercher si elle se rattache h
l'un ou l'autre des sujets des articles 91 et 92 (AA.B.N.). Dans la cause de
McGILL LAW JOURNAL
[Vol. 22
A. G. Ontario v. Canada Temperance Federation, [1946] A.C. 193, le vicomte
Simon s'exprimait ainsi:
"In their Lordships' opinion the true test must be found in the real
subject matter of the legislation: if it is such that it goes beyond local
or provincial concern or interests and must in its inherent nature be
the concern of the Dominion as a whole (as, for example, in the Aeronautics case ... and the Radio case ... ) then it will fall within the
competence of the Dominion Parliament as a matter affecting the
peace, order and good government of Canada, though it may in another
aspect touch on matters specially reserved to the provincial legislatures."
I1 faut aussi distinguer entre la nature d'une 16gislation et ses effets.
Le m6me vicomte Simon dans la cause de Attorney General for Saskatchewan v. Attorney General for Canada [1949] A.C. 110, I la page 123 disait:
"Consequential effects are not the same thing as legislative subject
matter. It is "the true nature and character of the legislation," - not
its ultimate economic results - that matters."
Ce n'est donc pas parce qu'une legislation municipale dont le caractbre
et ]a nature sont de droit criminel, comme dans le cas qui nous occupe,
a des effets sur la proprit6 et les droits civils qu'elle peut 8tre validde;
L'urgence exceptionnelle exprimde au prdambule du r~glement de la
Ville n'autorise pas non plus la Ville b. passer une telle 16gislation;
"True it is that an emergency may be the occasion which calls for a
legislation, but it is the nature of the legislation itself, and not the
existence of emergency, that must determine whether it is valid or not."
A. G. Ontario v. Canada Temperance Federation, (pr6cit6).
D'ailleurs, les manifestations tumultueuses accompagndes de violence
et d'actes criminels ne sont pas un ph6nom~ne particulier et exceptionnel
k la Ville de Montreal. Ce phdnom~ne fait partie des "public wrongs" dont
parle la decision de Russell v. The Queen, prdcit6e, et, A ce titre, est une
mati~re en relation avec le droit criminel rdservde au Parlement du Canada;
Ce n'est pas non plus parce que ce r~glement est limit6 au domaine
public de la Ville qu'il peut 6tre valide. Dans la cause de Saumur v. City of
Quebec [1953] 2 S.C.R. 299, le juge Kellock s'exprimait ainsi:
"No citation of authority is needed to establish the proposition that civil
regulation of the use of highways is a matter within the jurisdiction of
provincial Legislatures, but there is a distinction between legislation
in relation to a subject matter within s.92 and legislation which may
have an effect upon such matters: A. G. Sask. v. A. G. Can. [1949] 2
D.L.R. 145 at pp. 149-50, A.C. 110 at p. 123, per Viscount Simon. It is
only legislation "in relation to" matters within s.92 which is committed to provincial Legislatures...
Legislation which is concerned not primarily with highways at all but
with other subjects must depend for its validity upon the legislative
competence of the Legislature with respect to such subjects."
Ce n'est pas non plus parce que la Ville estime que le Parlement du
Canada n'est pas all6 assez loin dans l'6tablissement d'un crime qu'elle a
droit d'y suppl6er, en crdant un nouveau crime par 1'article 5 de son r~glement et l'ordonnance 6mise en vertu dudit article. Le juge Middleton de la
Cour Supreme d'Ontario dans Re Race Track and Betting (1921) 61 D.L.R. 504
s'exprimait ainsi:
1976]
69
"To the Dominion has been given exclusive jurisdiction over "criminal
law". It alone can define crime and enumerate the acts which are to
be prohibited and punished in the interests of public morality. The
'Province may prohibit many things when its real object is the regulation
of and dealing with property and civil rights, or any of the subjects
assigned to its jurisdiction. Parliament may deal with the same things
from the standpoint of public morality, so there may be in many cases
room for discussion as to the apparent conflict between the two
legislative fields.
In the case in hand the proposed legislation is not in any way within
the ambit of the provincial jurisdiction, but it is an attempt by the
Province to deal with the question of public morals. Gambling is regarded as an evil. Parliament has undertaken, in the exercise of its
powers, to lay down rules in the interest of public morals to regulate
it. It has considered that on certain race-tracks betting by means of
pari-mutuel machines shall not be unlawful. The Province, thinking this
does not sufficiently guard public morals, seeks, in an indirect way to
accomplish that which it thinks the Dominion should have done, and
so proposes to prohibit racing on all tracks upon which it is lawful
under the Dominion Act to operate pari-mutuel machines.
This is in no sense a conflict between the two jurisdictions by reason
of the overlapping of the fields, but it is a deliberate attempt to trespass
upon a forbidden field."
Cet article 5 du r~glement de la Ville avec le pouvoir qu'il conf~re au
Comit6 ex~cutif de la Ville d'interdire "toute assemblde, d~fil6 ou attroupement" est nettement une legislation dont la nature et le caract~re sont
en relation avec le droit criminel et consdquemment ultra vires;
En est-il autant des autres articles du r6glement? Il paralt 6vident que
cet article 5 est le coeur du r~glement et que les autres articles n'ont 6t6
dict~s que pour y arriver et qu'ils sont en quelque sorte ses vaisseaux sanguins et que, partant, ils n'auraient probablement pas 6t6 6dictds sans
l'article 5;
Le procureur du Ministre de la justice du gouvernement fdd6ral conclut
que le r~glement est nul en son entier et je partage cette opinion, et, a
cette fin, je fais mien l'expos6 qu'il a fait dans ses notes h ce sujet:
"Le Conseil Priv6 a 6nonc6 le principe comme suit dans Reference re
Alberta Bill of Rights Act [1947] 4 D.L.R. 1:
"There remains the second question whether when Part II has been
struck out from the Act as invalid, what is left should be regarded as
surviving, or whether, on the contrary, the operation of cutting out Part
II involves the consequence that the whole Act is a dead letter. This sort
of question arises not infrequently and is often raised (as in the present
instance) by asking whether the legislation is intra vires 'either in whole
or in part', but this does not mean that when Part II is declared invalid
what remains of the Act is to be examined bit by bit in order tQ
determine whether the Legislature would be acting within its powers
if it passed what remains. The real question is whether what remains
is so inextricably bound up with the part declared invalid that what
remains cannot independently survive or, as it has sometimes been put,
whether on a fair review of the whole matter it can be assumed that
McGILL LAW JOURNAL
[Vol. 22
the Legislature would have enacted what survives without enacting
the part that is ultra vires at all."
Dans Garrick v. Point Grey [1927] 1 D.L.R. 446, la r~gle de la divisibilit6 a 06 expos~e dans le m6me sens mais d'une faron un peu diff~rente:
"A by-law may be good in part and bad in part, but the part that is
good must be clearly distinguishable from the part that is bad, so that
if the invalid portion is eliminated there will still remain a perfect
and complete by-law capable of being enforced. The instances which
admit of the severance of the good from the bad portion of by-laws
are confined to cases where the parts sought to be severed relate to
distinct subject matters."
La Cour d'appel d'Ontario dans Morrison v. Kingston [1937] 4 D.L.R. 740,
a d6clar6 ultra vires dans son entier un r~glement municipal dont la partie
ultra vires n'6tait pas clairement divisible ("clearly severable") du reste.
Dans cette cause, le juge Latchford disait: "A by-law may be compared to
an egg. If bad in part it is bad everywhere" (p. 541). Voir aussi Nelson v.
London [1944] 3 D.L.R. 604, et Rex v. Joly Oil Co. 97 C.C.C. 338.
Parmi les causes citdes par les procureurs partisans de l'invalidit6 du
r~glement, il en est une qui a retenu mon attention A cause de sa ressemblance avec le present cas. Ii s'agit de la decision d'un juge de ]a Cour
Supreme de la Colombie Britannique Kent District Corp. v. Storgoff (1962)
38 D.L.R. (2d) 362, qui a d6clar6 invalide un r~glement municipal, (il s'agissait
d'un r~glement interdisant aux Doukobors de p6n6trer sur le territoire de la
municipalit6), comme 6tant un sujet relatif au droit criminel. Au prdambule
dudit r~glement, on pouvait lire entre autre ce qui suit:
"And whereas the arrival of a group of this kind in the District of Kent
will disorganize the educational system of the School district, will be a
menace to health, and is likely to lead to breaches of the peace and
the possible break-down of law and order in the district.
And whereas the powers and authorities vested in or conferred upon the
Council are inadequate to deal with the emergency created by these
conditions."
Venant hi la conclusion que le r6glement num6ro 3926 de la Ville de
Montreal est ultra vires de m~me que l'ordonnance num6ro 1 adoptde le 12
novembre 1969 parce qu'il est une l6gislation dont le caract~re et la nature
sont en relation avec le droit criminel, je m'abstiendrai d'examiner les autres
motifs soulev~s par la requrante;
Reversed by the Quebec Court of Appeal, C.A. 13,482 and 13,590,
September 26, 1974 (unreported).

The Central Fallacy of Canadian Constitutional Law

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